NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3002-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN J. GUTIERREZ, a/k/a
JOHN GUIERREZ,
Defendant-Appellant.
______________________________
Submitted September 9, 2019 – Decided December 5, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-07-0930.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant John J. Gutierrez appeals from the Law Division's judgment of
conviction that the trial court entered after a jury acquitted defendant of
manslaughter but convicted him of aggravated assault and possession of a
controlled dangerous substance (CDS). He also appeals from his aggregate
sentence of seven years. At trial, the evidence established the victim died after
being beaten by defendant.
On appeal, defendant argues that the trial court should not have admitted
into evidence statements he made to police, and for the first time on appeal, he
contends that it was plain error for the trial court to not instruct the jury about
their consideration of defendant's statements in accordance with the Model Jury
Charges. He also contends that he was deprived of a fair trial by the prosecutor's
misstatements made during summation. Finally, defendant argues that in
imposing its sentence, the trial court improperly rejected all but one mitigating
factor. For the reasons that follow, we reject defendant's contentions and affirm.
I.
Defendant's conviction arose from a fight he engaged in with the victim,
a friend of his, on October 10, 2015. 1 According to defendant, who testified at
1
Defendant testified that the two had known each other since he was in grammar
school, they often used drugs together, and that defendant had entered into a
sexual relationship with the mother of the victim's child.
A-3002-17T1
2
trial, just prior to the beginning of the fight, defendant had been smoking
phencyclidine (PCP) with the victim and other friends in defendant's car. During
the ensuing altercation that started inside the car, the victim struck defendant in
the head, hit him in the face, and took hold of him by his neck, while defendant
was defending himself against the victim.2
After the fight, a meter attendant observed defendant walking near a car
and using a bottle of water in attempt to wash blood off his hands. The meter
attendant alerted the police and Officer David Tafer responded to the scene.
Upon his arrival, Tafer found defendant in the car with an injury to his eye and
a scratch to his face, and another individual who appeared to be unconscious, if
not dead, on the floor of the car.
Tafer removed defendant from the vehicle, placed him under arrest, and
handcuffed him, before placing him in the back of Tafer's police vehicle.
Defendant did not make any statements to Tafer nor did Tafer ask him any
questions.
2
Other evidence, including surveillance camera video tapes, defendant's
testimony that he did not fear the victim, the victim's blood on the bottom of
defendant's shoes, the extent of the injuries to the victim, and the lack of any
significant injuries to defendant, indicated that defendant beat the victim during
the fight.
A-3002-17T1
3
A police detective, Michelle Aviles, joined Tafer at the scene. Upon her
arrival, she observed defendant laying down in the back of the police car. When
she checked to see if "he was okay," defendant spontaneously stated that he had
gotten into a fight with "Eddie." Aviles, not knowing that "Eddie" was the
victim in defendant's car, asked defendant where "Eddie" was located at the
time. Defendant responded that he was "in [my] car." Defendant also stated he
was "never doing PCP again."
Moments later, an emergency medical technician (EMT) arrived with an
ambulance. As the EMT approached, defendant stated the victim "got crazy on
PCP." Defendant was then taken to the hospital. He was accompanied in the
ambulance by then police officer Ramy Hanna. In the ambulance, Hanna never
asked defendant any questions. However, defendant spontaneously asked Hanna
where the victim was and stated that the two of them "got too excited . . . [,] got
in an argument," and defendant "fucked [the victim] up," after they "smoked too
much PCP." In response, Hanna "advised him to hold all his questions for
detectives, and [that Hanna did not] have any answers for him, and to only
answer the medical questions that was being asked by the EMT."
While defendant was being transported to the hospital, another police
officer conducted a search of the vehicle where defendant was found. The
A-3002-17T1
4
officer observed the victim's lifeless body, took photographs, and helped remove
the body. A vile of PCP was also recovered from the vehicle.
Dr. Leah Cronin, the medical examiner, conducted an autopsy of the
victim on October 13, 2015. The doctor observed bruises and scrapes on the
body, including near the victim's eyes, legs, chest, on his fingers, and neck. She
also noted that the victim suffered from coronary heart disease and had suffered
a heart attack on an earlier occasion.
The doctor did not reach a conclusion as to the cause of death and only
indicated that the determination was pending, although the doctor advised a
detective that she did not believe the victim's death was caused by the bruises
and abrasions she found on his body. In order to help reach a conclusion as to
the cause of death, Cronin requested a consult with a neuropathologist as to the
condition of the victim's brain.
A neuropathologist, Dr. Leroy Sharer, conducted an examination of the
victim's brain that revealed hemorrhaging. Sharer concluded there was only a
mild injury to the brain that occurred less than twenty-four hours before the
victim expired, but that it was neither significant nor the cause of death.
A-3002-17T1
5
Toxicology testing of the victim revealed that the PCP level in his blood
exceeded the toxic range but had not reached a fatal level. There was also
evidence that the victim had taken medication used to treat seizures.
After reviewing these additional reports, Cronin concluded that the
victim's death was a homicide and the cause of death was a blunt impact to the
head. She would not opine as to what type of blunt force occurred or the time
of the victim's death. Cronin also identified PCP intoxication, hypertension, and
heart disease as contributory factors. According to the doctor, the victim's use
of PCP could have caused the victim's heart, which she found to be enlarged, to
"work harder" than normal. She further explained that the victim's hypertension
had impacted his kidneys and his earlier heart attack made him prone to
ventricular fibrillation, but that could not be detected by the autopsy.
In 2016, a grand jury returned an indictment charging defendant with
second-degree manslaughter, N.J.S.A. 2C:ll-4(b)(1) (count one); second-degree
aggravated assault, N.J.S.A. 2C:12-l(b)(1) (count two); and with third-degree
possession of CDS (PCP), N.J.S.A. 2C:35-l0(a)(1) (count three). Prior to
defendant's trial, the State filed motions to admit statements made by defendant.
After conducting hearings, on July 31, 2017, the trial court granted in part and
denied in part one motion, and on September 28, 2017, it granted the other.
A-3002-17T1
6
The trial took place over nine days in October 2017. At its conclusion,
the jury acquitted defendant of manslaughter, but convicted him of aggravated
assault and possession of CDS. At sentencing, the trial court imposed the
aggregate seven-year term, subject to a parole ineligibility period under the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant asserts the following contentions:
POINT I
THE CUSTODIAL STATEMENTS MADE BY
DEFENDANT TO POLICE WERE IN VIOLATION
OF HIS RIGHT AGAINST SELF-INCRIMINATION
AND SHOULD NOT HAVE BEEN ADMITTED
INTO EVIDENCE.
POINT II
THE FAILURE OF THE TRIAL COURT TO GIVE
HAMPTON AND KOCIOLEK[3] JURY
INSTRUCTIONS WAS PLAIN ERROR. (NOT
RAISED BELOW).
POINT III
MISSTATEMENTS OF FACT AND LAW BY THE
PROSECUTOR DURING HIS SUMMATION WERE
UNDULY PREJUDICIAL AND DEPRIVED
DEFENDANT OF A FAIR TRIAL. (NOT RAISED
BELOW).
3
State v. Hampton, 61 N.J. 250 (1972); State v Kociolek, 23 N.J. 400 (1957).
A-3002-17T1
7
POINT IV
BECAUSE THE SENTENCING COURT
ERRONEOUSLY REJECTED CERTAIN
MITIGATING FACTORS IN IMPOSING A NERA
SENTENCE OF SEVEN (7) YEARS, DEFENDANT'S
SENTENCE MUST BE MODIFIED AND REDUCED.
We are not persuaded by any of these arguments.
II.
Defendant's first argument relates to the trial court's admission of the
statements defendant made to police prior to his arrival at the hospital and before
he received any Miranda4 warnings. After conducting an evidentiary hearing
under Rule 104, the trial court found the statements were made while defendant
was in police custody, but it concluded they were not made in response to any
police interrogation and were therefore admissible. Specifically, as to Aviles's
question about where "Eddie" was, the trial court concluded that the officer
could not have anticipated defendant's identification of "Eddie" as the victim
lying in his car when she asked her question.
Defendant argues that Aviles questioning defendant about the victim's
location, her and Hanna's knowledge that defendant was under the influence of
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3002-17T1
8
PCP, which impaired his mental and physical condition, and that defendant was
injured, warranted the suppression of the statements. We disagree.
Our review of a trial court's grant or denial of a motion to suppress a
defendant's statement is deferential. State v. Vincenty, 237 N.J. 122, 131-32
(2019). If a trial court's findings are supported by sufficient, credible evidence
present in the record, our "task is complete and [we] should not disturb the
result." State v. Johnson, 42 N.J. 146, 162 (1964). In contrast, we review de
novo a trial court's legal conclusions. State v. Hubbard, 222 N.J. 249, 263
(2015).
It is beyond cavil that Miranda warnings are designed to protect an
individual's Fifth Amendment right to remain silent when confronted with a
criminal charge and exposure to police interrogation. "Miranda safeguards
come into play whenever someone is subject either to express questioning 'or its
functional equivalent.'" State ex rel. A.A., 455 N.J. Super. 492, 503 (App. Div.
2018) (quoting State v. Brown, 282 N.J. Super. 538, 549 (App. Div. 1995)).
However, "Miranda has no application to statements that are
'volunteered.'" State v. Brabham, 413 N.J. Super. 196, 210 (App. Div. 2010)
(quoting Miranda, 384 U.S. at 478). "Interrogation triggering the State's
obligation to deliver Miranda warnings requires 'words or actions on the part of
A-3002-17T1
9
the police that they should have known were reasonably likely to elicit an
incriminating response.'" Id. at 210-11 (quoting Rhode Island v. Innis, 446 U.S.
291, 303 (1980)).
In this case, we conclude that the trial court correctly determined that
defendant's statements were not the result of police interrogation as there was
no action taken by law enforcement that elicited an incriminating response from
defendant. When Aviles asked the only question put to defendant about where
"Eddie" was located, Aviles had no knowledge that "Eddie" was the victim.
Aviles asked the question when defendant spontaneously stated he had been in
a fight with "Eddie." The other statements admitted were purely spontaneous
and unrelated to police interrogation. We therefore discern no abuse in the trial
court's discretion by admitting defendant's statements.
III.
We next consider defendant's challenge to the trial court's jury
instructions. According to defendant, even though he did not raise any issue as
to the jury instructions before the trial court, it was plain error for the court to
have not charged the jury with the statements made by defendant "as required
by N.J.R.E. 104(c) and State v. Hampton and State v Kociolek." According to
defendant, his conviction should be reversed because "[t]he court failed to
A-3002-17T1
10
advise the jury that they must consider and weigh such evidence with caution,
weigh whether it was in fact said and if it was reported accurately." We disagree.
Where, as here, a defendant raises a challenge to the trial court's jury
instructions for the first time on appeal, he must establish that the error about
which he complains rises to the level of plain error. Plain error is established
when the error, if any, had the capacity to result in the jury reaching a decision
it might otherwise not have made. R. 2:10-2; see also State v. Funderburg, 225
N.J. 66, 79 (2016).
As applied to jury instructions, plain error is an error that "prejudicially
affect[s]" a defendant's substantial rights in a "sufficiently grievous" manner,
which has the "clear capacity to bring about an unjust result." State v. Afanador,
151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see
also Funderburg, 225 N.J. at 79. "The mere possibility of an unjust result is not
enough. To warrant reversal . . . an error at trial must be sufficient to raise 'a
reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached.'" Funderburg, 225 N.J. at 79 (second alteration in
original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
To be sure, "[a]ppropriate and proper charges are essential for a fair trial."
State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State
A-3002-17T1
11
v. Reddish, 181 N.J. 553, 613 (2004)). A "court has an 'independent duty . . . to
ensure that the jurors receive accurate instructions on the law as it pertains to
the facts and issues of each case, irrespective of the particular language
suggested by either party.'" Id. at 159 (alteration in original) (quoting Reddish,
181 N.J. at 613). "Because proper jury instructions are essential to a fair trial,
'erroneous instructions on material points are presumed to' possess the capacity
to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J.
534, 541-42 (2004)); see also State v. Singleton, 211 N.J. 157, 182-83 (2012).
The omitted instruction, which is commonly known as a Hampton-
Kociolek charge, advises the jury its "function [is] to determine whether or not
[any written or oral] statement was actually made by the defendant, and if made,
whether the statement or any portion of it is credible." Model Jury Charges
(Criminal), "Statements of Defendant" (rev. June 14, 2010). "[W]henever a
defendant's oral or written statements . . . are introduced," trial courts are
mandated to give the instruction whether requested by defendant or not. Jordan,
147 N.J. at 425.
Hampton addressed statements made in response to police questioning,
while Kociolek related to statements to lay witnesses. In Hampton, the Supreme
Court held that when a defendant's confession is admitted in evidence, the judge
A-3002-17T1
12
shall instruct the jurors "that they should decide whether . . . the defendant's
confession is true," and if they conclude "that it is not true, then they must . . .
disregard it for purposes of discharging their functions as fact finders."
Hampton, 61 N.J. at 272. "The failure of a court to give a Hampton charge,
however, is not reversible error per se." Jordan, 147 N.J. at 425.
It is reversible error only when, in the context of the
entire case, the omission is "clearly capable of
producing an unjust result. . . ." R. 2:10-2. That
problem would arise most frequently when the
defendant's statement is critical to the State's case and
when the defendant has challenged the statement's
credibility. If, however, the defendant's statement is
unnecessary to prove defendant's guilt because there is
other evidence that clearly establishes guilt, or if the
defendant has acknowledged the truth of his statement,
the failure to give a Hampton charge would not be
reversible error.
[Id. at 425-26 (first alteration in original) (emphasis
added).]
The Kociolek charge pertains to the reliability of an inculpatory statement
made by a defendant to any witness. See Kociolek, 23 N.J. at 421-23. As
explained in Kociolek, the jury should be instructed to "'receive, weigh and
consider such evidence with caution,' in view of the generally recognized risk
of inaccuracy and error in communication and recollection of verbal utteran ces
and misconstruction by the hearer." Id. at 421. However, similar to a Hampton
A-3002-17T1
13
charge, a Kociolek charge need not be provided to the jury where "an alleged
oral inculpatory statement was not made in response to police questioning, and
there is no genuine issue regarding its contents, . . . because the only question
the jury must determine is whether the defendant actually made the alleged
inculpatory statement." State v. Baldwin, 296 N.J. Super. 391, 401-02 (App.
Div. 1997) (emphasis added).
The failure to give a Kociolek charge also is not plain error per se. Jordan,
147 N.J. at 428 (noting it would be "a rare case where failure to give a Kociolek
charge alone is sufficient to constitute reversible error"). We have held that
"[w]here such a charge has not been given, its absence must be viewed within
the factual context of the case and the charge as a whole to determine whether
its omission was capable of producing an unjust result." State v. Crumb, 307
N.J. Super. 204, 251 (App. Div. 1997) (finding "no reported case in which a
failure to include a Kociolek charge has been regarded as plain error"); Baldwin,
296 N.J. Super. at 398 (holding that "a special cautionary instruction is not
required when a defendant has allegedly made a voluntary inculpatory statement
to a non-police witness without being subjected to any form of physical or
psychological pressure").
A-3002-17T1
14
Here, defendant did not give a confession in response to police
questioning, therefore, a Hampton charge concerning the statements he made in
the presence of Aviles or Hanna was not required. Moreover, defendant's
testimony at trial established there was no dispute as to the veracity of the
statements he claims warranted the specific jury instructions. At trial, defendant
did not dispute that he was in a fight with the victim and caused him injuries.
Rather, defendant testified that he acted in self-defense, and that the two of them
used PCP prior to the fight. Therefore, since "defendant's statement [was]
unnecessary to prove [his] guilt because . . . defendant has acknowledged the
truth of his statement, the failure to give a Hampton charge [is] not . . . reversible
error." Jordan, 147 N.J. at 425-26.
Under these circumstances and given the trial court's instruction as to the
jury's determination of the credibility of all witnesses, we conclude defendant
has failed to establish any error, let alone plain error, in the court not instructing
the jury about his statements. See State v. Setzer, 268 N.J. Super. 553, 563-65
(App. Div. 1993) (holding the omission of a Hampton charge was not clearly
capable of producing an unjust result when a general credibility charge was
given); see also Jordan, 147 N.J. at 429.
A-3002-17T1
15
IV.
We turn our attention to defendant's contention that it was plain error for
the trial court to allow certain comments that were made by the prosecutor
during summation. According to defendant, those statements contained
"misstatements of fact and law, were grossly prejudicial and deprived . . .
defendant of a fair trial." In support of his contention, defendant specifically
cites to the following comments made by the prosecutor during his summation:
[I]t's been suggested to you throughout this case and in
summation that [defendant] is somehow not responsible
for what happened here because [the victim] was a sick
guy, because he wasn't the picture of health, because
[he] had a bad heart, he used drugs, he was a little
overweight, his liver wasn't that good. As if that
somehow was an excuse. As if he [was] not entitled to
any less protection because of these reasons.
[The defense s]uggested . . . some mysterious,
unknown cause of death.
We have a decedent in this case. I think that speaks
plainly. You've heard about the injures [the victim]
sustained. I think that . . . speaks plainly . . . to the use
of deadly force.
How he admitted that it wasn't a fight. It was a beat
down. That was his testimony.
Defendant argues that he did not admit to there having been a "beat down,"
as he clearly testified that he had been attacked and was defending himself
A-3002-17T1
16
against the victim's aggression. Moreover, he challenges the prosecutor's
comments about defendant trying to "excuse" his behavior through the dispu te
over the victim's cause of death. Defendant contends that the prosecutor's
comment was to "engender[] sympathy" from the jury. In addition, he argues
because there was no evidence of any weapon being used, the prosecutor's
reference to deadly force was not appropriate. We conclude these contentions
are without merit.
Prosecutors are "expected to make vigorous and forceful" summations,
and they "are afforded considerable leeway" so long as their remarks are tethered
to the evidence presented and the reasonable inferences to be drawn therefrom.
State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559
(1995)); (State v. Williams, 113 N.J. 393, 447 (1988)). For that reason,
prosecutors are afforded "wide latitude" during summation. State v. R.B., 183
N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968)).
However, prosecutors generally "must confine their comments to evidence
revealed during the trial and reasonable inferences to be drawn from that
evidence." See State v. Smith, 167 N.J. 158, 178 (2001) (first citing Frost, 158
N.J. at 86; then citing State v. Marks, 201 N.J. Super. 514, 534 (App. Div.
1985)). Nevertheless, where a prosecutor's comment was a fair response to
A-3002-17T1
17
defense counsel's summation, we will reject a defendant's argument that the
comment was improper. State v. Smith, 212 N.J. 365, 404 (2012); State v.
Williams, 317 N.J. Super. 149, 158 (1998).
In evaluating a claim of prosecutorial misconduct, there are two issues to
be addressed: (1) whether the prosecutor's comments amounted to misconduct
and, if so, (2) whether the prosecutor's conduct justifies a new trial. State v.
Wakefield, 190 N.J. 397, 446 (2007) (citing Smith, 167 N.J. at 181). Reversal
of defendant's conviction is not justified unless the prosecutor's comments were
"so egregious that [they] deprived defendant of a fair trial." Ibid. (quoting
Smith, 167 N.J. at 181).
"Generally, if no objection was made to the [prosecutor's] remarks," the
remarks "will not be deemed prejudicial." State v. Kane, 449 N.J. Super. 119,
141 (App. Div. 2017) (quoting Frost, 158 N.J. at 83). "The failure to object
suggests that defense counsel did not believe the remarks were prejudicial at the
time they were made." Frost, 158 N.J. at 84. "The failure to object also deprives
the court of an opportunity to take curative action." Ibid. (citing State v.
Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997)).
Applying these guiding principles here, we discern no plain error and
conclude that defendant's contentions to the contrary are without sufficient merit
A-3002-17T1
18
to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say,
the challenged statements were based upon defendant's testimony and made in
response to defendant's summation that focused on the dispute over the victim's
cause of death. In light of the jury's acquittal of defendant on the manslaughter
charge, defendant was not deprived of a fair trial based upon the prosecutor's
remarks.
V.
Last, we address defendant's challenge to his sentence. At his sentencing,
the trial court considered the parties' written and oral submissions regarding the
applicability of the statutory aggravating and mitigating charges, N.J.S.A.
2C:44-1(a) and (b), as well as defendant's request to be sentenced in the third-
degree range for his second-degree conviction of aggravated assault. See
N.J.S.A. 2C:44-1(f)(2); State v. Megargel, 143 N.J. 484, 487 (1996).
In a comprehensive oral decision, the trial court rejected defendant's
request for sentencing in a lower range, after concluding that the only
aggravating factor it found, number nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need
for deterring the defendant and others from violating the law"), outweighed the
only mitigating factor it found, number seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he
defendant has no history of prior delinquency or criminal activity or h as led a
A-3002-17T1
19
law-abiding life for a substantial period of time before the commission of the
present offense"). In doing so, the trial court analyzed each aggravating factor
advanced by the State and each mitigating factor argued for by defendant before
concluding that only the two factors applied.5 The court then considered the
factors under State v. Yarbough, 100 N.J. 627, 643-44 (1985), placed its reasons
on the record, and imposed the seven-year term subject to a parole ineligibility
period under NERA on the aggravated assault conviction, and a concurrent,
rather than consecutive, three-year term for the CDS possession.
5
The State also argued for application of aggravating factors two, N.J.S.A.
2C:44-1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim,
including whether or not the defendant knew or reasonably should have known
that the victim of the offense was particularly vulnerable or incapable of
resistance . . . ."); and six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the
defendant’s prior criminal record and the seriousness of the offenses of which
he has been convicted").
Defendant also argued for mitigating factor two, N.J.S.A. 2C:44-1(b)(2)
("[t]he defendant did not contemplate that his conduct would cause or threaten
serious harm"); three, N.J.S.A. 2C:44-1(b)(3) ("[t]he defendant acted under a
strong provocation"); four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial
grounds tending to excuse or justify the defendant’s conduct, though failing to
establish a defense"); five, N.J.S.A. 2C:44-1(b)(5) ("[t]he victim of the
defendant’s conduct induced or facilitated its commission"); eight, N.J.S.A.
2C:44-1(b)(8) ("[t]he defendant’s conduct was the result of circumstances
unlikely to recur"); nine, N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude
of the defendant indicate that he is unlikely to commit another offense"); and,
ten, N.J.S.A. 2C:44-1(b)(10) ("[t]he defendant is particularly likely to respond
affirmatively to probationary treatment").
A-3002-17T1
20
On appeal, defendant contends that the trial court improperly rejected the
other mitigating factors he argued were applicable to the circumstances. This
was based primarily upon defendant's testimony that the victim started the
altercation, defendant had no prior indictable convictions, defendant was in need
of drug treatment, and was remorseful. He argues "[h]ad the sentencing court
correctly evaluated the relevant mitigating factors, [they] would have
outweighed the sole aggravating factor of deterrence." We again disagree with
defendant's contentions.
We review a sentence imposed by the trial court under an abuse of
discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we
consider whether: "(1) the sentencing guidelines were violated; (2) the findings
of aggravating and mitigating factors were . . . 'based upon competent credible
evidence in the record;' [and] (3) 'the application of the guidelines to the facts'
of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,
228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)).
Applying that standard, we conclude defendant's challenge to his sentence
is without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We affirm substantially for the reasons the trial court expressed at
A-3002-17T1
21
sentencing in its thorough oral decision. We are satisfied that the court did not
violate the sentencing guidelines, and the record amply supports its findings on
aggravating and mitigating factors. The sentence is clearly reasonable and does
not shock our judicial conscience.
Affirmed.
A-3002-17T1
22